The Second Amendment as a Fundamental Right
52 Pages Posted: 31 Oct 2018 Last revised: 4 Feb 2019
Date Written: January 2019
The Second Amendment is suffering from an inferiority complex. Litigants, scholars, and judges complain that the right to keep and bear arms is not being afforded the respect and dignity befitting a fundamental constitutional right. They assert that on its own terms and relative to rights in the same general class, the Second Amendment is being disrespected, under-enforced, and orphaned. They argue that the Second Amendment is regarded as peripheral, fringe, anachronistic, second- rate, and second-class – in sum, as one commentator states, it is the Rodney Dangerfield of the Bill of Rights. Reviewing the available evidence, this Article generally rejects second-class claims as either false or overstated. Many of the claims are based on false premises, including the notion that the Supreme Court and lower courts immediately and aggressively expand the scope of fundamental rights once they are recognized, that all fundamental rights are created and enforced equally, that the absence of strict scrutiny is demonstrative of lower-class status, and that low success rates demonstrate under-enforcement. As defined in District of Columbia v. Heller and interpreted in the lower courts, the Second Amendment exhibits all of the hallmarks of a fundamental constitutional right. It is a non-absolute, non-economic, individual dignity right that is considered implicit in the concept of ordered liberty. Constructed in the image of the Free Speech Clause and analogized in those terms by many courts, the right to keep and bear arms exerts a powerful influence on constitutional discourse and political outcomes. To be sure, success rates for Second Amendment claims have been low, and lower courts have hesitated to interpret Heller broadly. However, the available evidence does not show that either the results or the restraint are the product of judicial hostility, resistance, or political ideology. Although it has been silent for a decade, the Supreme Court has surely not abandoned the Second Amendment for all time. Indeed, other fundamental rights have experienced the same, or in some cases greater, periods of neglect or inattention. Our experience with fundamental rights shows that what courts have made of the Second Amendment in its first decade will not dictate what the right will become in its second decade and beyond. Whatever it becomes, by whatever dynamics will affect it, the Second Amendment's path should be charted according to an accurate assessment of both its real and relative current status.
Keywords: Second Amendment, Arms, Fundamental, Freedom of Speech, Strict Scrutiny, Rights
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